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Treaties - Treaties and native americans

One purpose of the new Constitution was to organize an effective army to
deal with issues surrounding the "western lands." The
western lands, were, of course, occupied by Native Americans. The
history of U.S. relations with Native Americans during the nineteenth
century is long and complicated because of the number of different
Native American peoples involved, but fundamentally simple in terms of
the process that was repeated hundreds of times across the continent.
The U.S. government deployed military garrisons on the edge of Indian
(Native American) territories, and when conflict arose, as it invariably
did, the army reacted by invading the Indian nations and attacking the
Native Americans.

At the time of the American Revolution, however, Americans viewed the
Indians as distinct peoples, and they viewed their nations as distinct
nations, even if other countries did not. Both the Articles of
Confederation and the Constitution of the United States reflected this
reality. One of the first acts of the Continental Congress was the
creation in 1775 of three departments of Indian affairs: northern,
central, and southern. Among the first departmental commissioners were
Benjamin Franklin and Patrick Henry. Their job was to negotiate treaties
with Indian nations and obtain their neutrality in the coming
revolutionary war. Among the first treaties presented to the Senate by
George Washington—in August 1789—dealt with U.S. relations
with various Native American tribes.

While the many accords reached with the Native Americans were sometimes
called treaties, in reality the treaties were fictions. On 9 July 1821,
Congress gave the president authority to appoint a commissioner of
Indian affairs to serve under the secretary of war and have "the
direction and management of all Indian affairs, and all matters arising
out of Indian relations." From 1824, Native Americans were
subject to the jurisdiction of the Bureau of Indian Affairs, newly
established as a division of the War Department. After 1849 they were
subject to the Home Department (later the Department of the Interior),
which, within a century, controlled virtually every aspect of Indian
existence.

International law in the nineteenth century did not consider as true
treaties accords concluded with indigenous tribes that were not
constituted in the form of genuine states. In 1831 the Supreme Court
under Chief Justice John Marshall in
Cherokee Nation
v.
Georgia
ruled that Indian nations were not foreign nations but "domestic
dependent nations," although the following year in
Worcester
v.
Georgia,
in a ruling that was defied by President Andrew Jackson and ignored by
Congress, he ruled that they were capable of making treaties that under
the Constitution were the supreme law of the land.

Between 1789 and 1871 the president was empowered by the Senate to make
treaties with the Native American tribes or nations in the United
States. These treaties ostensibly recognized the sovereignty of Native
Americans. Many of the very early Native American treaties were ones of
peace and friendship, and a few included mutual assistance pacts, or
pacts to prevent other tribes from making hostile attacks. The majority
of Native American treaties, however, dealt with trade and commerce, and
involved Indians ceding land. Native title was effectively extinguished
by treaties of evacuation and removal of the Native American population.
Most were signed under coercion. During the two terms of the presidency
of Andrew Jackson (1828–1836), when removal of Native Americans
from their lands reached almost a frenzy, ninety-four Indian treaties
were concluded under coercion. Interestingly, one feature that all
Native American treaties share with foreign treaties is that the courts
will not inquire into the validity of the signatories. Just as a court
will not inquire into whether a foreign dignitary was bribed or forced
into signing a treaty, the courts will not inquire into whether a Native
American tribe was properly represented during negotiation of a ratified
treaty or whether such a treaty was acquired by fraud or under duress.

The president's authority to make treaties with Native Americans
was terminated by the Indian Appropriations Act of 3 March 1871, which
declared that no Indian tribe or nation would be recognized as an
independent power with whom the United States could contract by treaty.
However, this statute did not alter or abrogate the terms of treaties
that had already been made. Native American treaties are still enforced
today and continue to constitute a major federal source of Native
American law.

In later years, Congress made provisions to permit Native Americans to
recover monetary damages for treaty violations by the federal
government. Prior to 1946 Congress enacted numerous special statutes
permitting tribes to recover damages through the court of claims, and in
1946 Congress established the Native American Claims Commission to
settle claims.

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